With flu season here and reported incidents of deaths caused by
diseases thought to have been eradicated by vaccines on the rise,
many healthcare providers are considering mandatory vaccination of
employees. The Centers for Disease Control and Prevention (CDC)
recommends that healthcare workers who work directly with patients
or handle material that could spread infection get appropriate
vaccines to reduce the chance that they will contract or spread
vaccine-preventable diseases. The CDC makes specific vaccine recommendations as to certain
diseases affecting healthcare workers, including hepatitis B;
influenza; measles, mumps, and rubella (MMR); varicella
(chickenpox); tetanus, diphtheria, and pertussis (Tdap); and
meningococcal.

Some healthcare industry employers mandate vaccinations with no
exemptions, while other employers support vaccinations but do not
require them or require them but allow exemptions. While a
healthcare provider may think that a mandatory vaccination rule is
the simplest approach and the safest choice with respect to public
health, such a rule is not without legal risk. Employees, unions,
and advocacy groups have consistently attacked mandatory
vaccination policies as violating employees' rights to privacy
and religious freedom.

In fact, in Hustvet v. Allina Health System, the U.S.
Court of Appeals for the Eighth Circuit recently analyzed whether
the defendant violated the Americans with Disabilities Act (ADA)
and the Minnesota Human Rights Act (MHRA) after it discharged an
employee who refused to get the MMR vaccine. The plaintiff, who
worked with patients with compromised immune systems, sued Allina,
making unlawful inquiry, discrimination, and retaliation claims
under both the ADA and the MHRA.

The Eight Circuit granted summary judgment to Allina on the
unlawful inquiry claim because Allina's requirement that
incoming employees who would work with clients complete an inquiry
and exam was job related, consistent with business necessity, and
no more intrusive than necessary. The court dismissed the
plaintiff's discrimination claim because her alleged chemical
sensitivities and allergies did not limit her ability to perform
major life activities; thus, they were not disabilities. Finally,
the court also granted summary judgment on the plaintiff's
retaliation claims, finding that Allina terminated the
plaintiff's employment because her job required her to work
with potentially immune-compromised clients and she refused to
comply with Allina's policy. The plaintiff could not show that
Allina's proffered non-retaliatory reason was mere pretext. The
Allina case shows the importance of being able to
articulate a valid reason for requiring a vaccination in the
specific instance that is on review.

Other courts have also upheld a healthcare institution's
right to require mandatory vaccinations and discharge employees who
refuse them. In addition, some courts have also found that in a
unionized setting, healthcare institutions need to negotiate the
implementation of a mandatory vaccination policy. Employers can
often institute a mandatory vaccination policy for at-will
employees without running afoul of the law. In such instances,
employees may either accept the policy or find work that does not
require vaccination. (Because of this, employers may want to
consider giving applicants notice of mandatory vaccination rather
than waiting until they become employees.) Note that, according to
the National Conference of State Legislatures, 18 states recognize
a philosophical exemption for those who object to school
immunizations because of personal, moral, or other beliefs.

At the federal level, the Occupational Safety and Health
Administration's (OSHA) position is that employers may mandate
that employees receive seasonal flu vaccinations, while the Equal
Employment Opportunity Commission (EEOC) takes the position that
Title VII of the Civil Rights Act of 1964 and the ADA permit an
employee to claim an exemption for disabilities; medical
conditions, such as a severe egg allergy; a past severe reaction;
or sincerely held religious beliefs.

If an institution decides to allow exemptions to the required
vaccines, one of the more difficult exemptions to analyze is the
religious exemption. Over the last few years, the EEOC has
aggressively opposed mandatory flu shots for employees. As
described in a 2018 article in the The New England Journal of
Medicine entitled "Vaccination without Litigation —
Addressing Religious Objections to Hospital Influenza-Vaccination
Mandates," the EEOC has routinely sued hospitals that deny
employee requests for religious exemptions to vaccination
requirements. The article reviews 14 cases where employees sued
based on an alleged religious objection to the flu vaccine. The
results of these cases were mixed, but they illustrate the
potential dangers of a mandatory vaccination policy.

Hospitals may run into trouble because of arbitrariness in
evaluating religious objections. The process of trying to determine
if someone is entitled to a religious exemption is, by its very
nature, a difficult one. Institutions requiring a clergy member to
attest to the religious belief in question have drawn the
EEOC's ire, and it is a slippery slope to ask for information
to confirm the basis for a religious exemption. Hospitals and
nursing homes that require vaccines are often put in a no-win
situation when their human resources departments try to determine
whether a religious exemption is valid.

Mandatory vaccination in healthcare is undoubtedly a growing
issue. Healthcare employers are rightly concerned with the health
of their patients and employees, but they need to be aware of the
legal risks that may arise from vaccination policies. If a
healthcare provider decides to make a vaccination mandatory, it may
want to take proactive steps to ensure that it can support its
decision. It must also determine how broadly the policy will apply;
for instance, a clerical worker does not pose the same risk to
patient safety as a nurse might. If exemptions will be allowed,
employers may want to also have a clear policy and written guidance
regarding the application of those exemptions to ensure
consistency. Employers can also provide decisions in writing and
articulate a well-founded reason in case the determination is
challenged later.

Finally, if an employee who receives an exemption is required to
wear a mask in the workplace or work in a different department, the
employer may want to ensure that the alternative makes sense and
truly advances the purpose of the vaccination so that it is not
viewed as punitive. Heavy-handed, context-free policies are likely
to lead to scrutiny, whereas well-drafted and reasonably applied
policies will stand the best chance of surviving a legal challenge.
Thus, employers may want to review their guidelines and determine
whether the basis for the vaccination policy is legitimate and
defensible. Further, employers can educate their workforces about
the policy and the company's position on vaccination.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).

Email Address

Company Name

Password

Confirm Password

Position

Mondaq Topics -- Select your Interests

Accounting

Anti-trust

Commercial

Compliance

Consumer

Criminal

Employment

Energy

Environment

Family

Finance

Government

Healthcare

Immigration

Insolvency

Insurance

International

IP

Law Performance

Law Practice

Litigation

Media & IT

Privacy

Real Estate

Strategy

Tax

Technology

Transport

Wealth Mgt

Regions

Africa

Asia

Asia Pacific

Australasia

Canada

Caribbean

Europe

European Union

Latin America

Middle East

U.K.

United States

Worldwide Updates

Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.

To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access

No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq

No, please do not send me promotional communications from Mondaq

Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions